Opening brief filed in US war-crimes appeal against Rajapakse

[TamilNet, Thursday, 04 October 2012, 04:20 GMT]Brief for the three Tamil Plaintiffs-Appellants in the case, Kasippillai Manoharan versus Percy Mahendra Rajpakse, the current sitting Head of Sri Lanka, was filed on Tuesday at the United States Court of Appeals for the District of Columbia, plaintiffs' attorney, Bruce Fein said. The legal issue raised was whether the words "an individual" in the Torture Victims Protection Act (TVPA), Congress subjected to civil liability for complicity in the universal crimes of torture or extra judicial killings under color of foreign law to implement the Convention Against Torture and to advance promoting human rights abroad include the sitting head of states (Mahinda Rajapakse) sued in their individual capacities, the legal brief of the plaintiffs said.

Bruce Fein, former US Associate Deputy Attorney General

Speaking to TamilNet on the appeal brief, Bruce Fein said, "we believe the State Department's insolent arrogance in torturing the plain language and purpose of the Torture Victim Protection Act to shield a criminal sitting Head of State from accountability will be rebuked by the U.S. Court of Appeals for the District of Columbia Circuit. We encourage every Tamil in the diaspora to pack the U.S. Courtroom on the day of oral argument (probably early 2013) as visible evidence of the reprehensible devastation President Rajapaksa has inflicted on innocent Tamil civilians. Experience should teach us that if we do not hang together, we will all hang
separately," Attorney Fein added.

Tamils Against Genocide (TAG), a US-based activist group that seeks legal redress to Tamil war victims, and which initiated the case, said that until all legal avenues are exhausted legal actions against Sri Lanka's high level military and political officials responsible for the Mu'l'livaaykkaal massacre of more than 40,000 unarmed Tamil civilians, the "crime of this century," will continue.

The brief argued that the District Court erred in the following legal issues when rendering the earlier ruling dismissing the case:

the Court "erred in conceiving Customary International Law (CIL) as including discretionary as opposed to obligatory rules and by slighting the Convention Against Torture and the Rome Statute in determining whether CIL has evolved since the TVPA to permit civil suits against sitting heads of state for the universal crimes of torture and extrajudicial killing which do not
paralyze a foreign government as would a criminal arrest or
imprisonment of a sitting Head of State,"

the District Court misinterpreted the TVPA by reliance on
inconclusive legislative history in lieu of plain statutory text.

the District Court further stumbled by neglecting the constitutional foreign policy prerogatives of Congress under Article I, Section 8, Clause 10 to sanction violations of the law of nations at variance with the President’s preferred realpolitik.

Plaintiffs argued that contrary to the District Court, CIL does not recognize limitless executive discretion to grant or withhold sitting Head of State Immunity. By definition, CIL is obligatory, not optional.

The brief also argued further that, to sustain the President’s unfettered discretion to extinguish a TVPA claim against a sitting head of state to advance the Presidents’ foreign policy would effect an unconstitutional taking of property without just compensation under the Takings Clause of the Fifth Amendment of the U.S. Constitution.

The Plaintiffs also pointed out that District Court’s conclusion that Executive Branch prescriptions of sitting Head of State Immunity are binding on the Judiciary in Article III cases and controversies conflicts with the Supreme Court’s rationale in United States v. Klein, 80 U.S. 128 (1871) that rules of decision for federal courts may not be prescribed by the political branches.

In sum, the legal brief said, all relevant canons of statutory construction militate in favor of the TVPA’s application to sitting heads of state complicit in the universal crimes of torture or extrajudicial killings under color of foreign law to further Congressional human rights objectives abroad.

The complaint filed first in 2011 at the District Court for this case alleged multiple violations of the TVPA) based on Sri Lanka's President Rajapaksa’s command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.

The case was dismissed in February 2012 by Judge Kotelly after the U.S. State Department intervened to assert that, as a sitting head of state, Rajapakse was immune from litigation.